Many nursing homes are experiencing major Coronavirus outbreaks, and nursing home residents and staff have taken on a heavy load of the pandemic’s burden. Deaths in long-term care facilities now make up at least one third of Coronavirus fatalities in most states. The virus has devastated over 50 Texas nursing homes, with facilities in Dallas, Fort Worth, El Paso, Houston, and other cities reporting more than a dozen confirmed cases or deaths per home. Some nursing home residents are frustrated with the way their facilities are handling the pandemic, and others are already starting to take legal action, suing nursing homes for neglect, abuse, and wrongful death. In order to protect itself, the nursing home industry has launched a broad lobbying effort to secure immunity from potential lawsuits over the way facilities are treating patients during the pandemic.
Nursing homes say legal protections from suit are necessary for staff to do their jobs as the pandemic has created an unprecedented situation that has left them struggling to care for a high-risk population while managing personal protective equipment, testing, frequently changing state and federal guidelines, and staffers calling in sick. While the federal government has provided legal protections for some health care professionals during the pandemic, they have not explicitly included nursing homes. So, the nursing home industry has focused much of its lobbying push at the state level, where it has seen quick results. In roughly 20 states so far, emergency orders have been issued that grant nursing homes immunity from most lawsuits during the Coronavirus pandemic (for example, Mississippi, Georgia, and Virginia, but not immunity order has been issued in Texas as of June 2020). These orders have also made it difficult for outsiders to know what is going on inside these facilities and the demand for information during the crisis has become particularly urgent. Federal officials have stopped doing routine inspections and have restricted visitors in homes, leaving families skeptical and desperate for answers. The data, published by the federal Centers for Medicare and Medicaid Services, gives an unprecedented look at how the disease has affected individual nursing homes across the country, but nursing homes only had to report cases and deaths since May 1, a few months into the pandemic, and much of the data remains incomplete.
Providing legal immunity to thousands of private companies is dangerous. The pandemic has exposed longstanding problems in the industry and taking away the ability to sue will make it harder to hold facilities accountable, now and in the future. Giving nursing homes immunity comes at a time when visibility into the quality of care at nursing homes is already low. While it may be necessary to suspend visitation to reduce possible exposure to COVID-19, the changes have also blocked most of the ways people outside a nursing home can know what is happening inside. Because of this, there is already a lack of accountability and monitoring. Couple that with giving nursing homes immunity, and you now have a dangerous combination. While the Coronavirus pandemic has created an unprecedented public health emergency, eradicating accountability and legal responsibility will come with a set of its own, possibly detrimental, consequences.